The Honorable David R. Malone State Senator P.O. Box 1048 Fayetteville, AR 72702-1048
Dear Senator Malone:
This is in response to your request for an opinion on the following question:
May a participating public employer such as the Four County Solid Waste District withdraw from the Arkansas Public Employees Retirement System (APERS) and establish its own plan after having previously elected to join APERS?
RESPONSE
It is my opinion that the answer to this question is in all likelihood "no." Legislative action would, in my opinion, be required in order to authorize the withdrawal of a participating public employee from APERS.
You have not identified the specific authority for the participation of this Solid Waste District's employees in APERS. The participation of employees of a regional solid waste management district is addressed in A.C.A. § 24-4-101(24) (Repl. 2000). Arkansas Code Annotated § 24-4-302 (Supp. 2000) must be referenced with respect to county employees. Regardless, however, of the specific authority for participation in APERS in this instance, my research has yielded no authority for the proposition that a participating public employer may withdraw from APERS and establish its own plan. It is significant to note in this regard that municipalities were at one time authorized to withdraw from the system.See Acts 1973, No. 586, § 2 and A.C.A. § 24-4-303(b) (Supp. 2000). Reference to this 1973 legislation illustrates the practical implications of withdrawal from the system. Provision had to be made for future system benefits for retirants and beneficiaries and for inactive members entitled to deferred annuities. These matters were specifically addressed in the one instance in which the legislature authorized the withdrawal of a participating public employer. It is my opinion that similar legislation would be required to authorize withdrawal in this instance.
Assistant Attorney General Elisabeth A. Walker prepared the following opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:EAW/cyh